Independent Reporting Mechanism (IRM): Germany Design Report 2019 2021 - Open Government ...
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Version for public comment: Please do not cite
Independent Reporting Mechanism (IRM):
Germany Design Report 2019−2021
This report was prepared in collaboration with Dieter Zinnbauer, Copenhagen Business School
Table of Contents
Executive Summary: Germany
2
I. Introduction
5
II. Open Government Context in Germany
6
III. Leadership and Multistakeholder Process
12
IV. Commitments
19
1. Regional Open Government Labs 20
2. Civil society dialogue on foreign policy 22
3. Youth participation in the Federal Government’s joint youth strategy 25
4. Establishment of an e-government agency as a Digital Innovation Team of the federal administration
27
5. Promotion of transparency and participation in development cooperation 29
6. Further development and promotion of the open data environment 31
7. Participatory process to develop research and innovation policy further in the framework of the
2025 High-Tech Strategy 33
8. Better regulation through participation and testing 35
9. Smarte LandRegion: A pilot project for smart rural regions 38
10. Developing infrastructure and framework conditions for open government in North Rhine-
Westphalia 40
11. Creating spaces for exchange and cooperation in North Rhine-Westphalia 43
12. Strengthening data sovereignty in North Rhine Westphalia 45
13. Further developing and establishing the participation portal of the Free State of Saxony 47
14. Schleswig-Holstein- Open-source software in public administrations 49
V. General Recommendations
51
VI. Methodology and Sources
55
Annex I. Commitment Indicators
57Version for public comment: Please do not cite
Executive Summary: Germany
Germany’s second action plan continues to focus on open data and civic participation in
decision-making processes. Notable commitments include improving the openness of German
foreign policy, expanding public participation in rule-making, and strengthening data sovereignty
in North Rhine-Westphalia. Germany’s next action plan could address climate change, lobbying
transparency, and expanding innovative open data practices at the state level.
The Open Government Partnership (OGP) is a Table 1. At a glance
global partnership that brings together government Participating since: 2016
reformers and civil society leaders to create action Action plan under review: Second
plans that make governments more inclusive, Report type: Design
Number of commitments: 14
responsive, and accountable. The Independent
Reporting Mechanism (IRM) monitors all action Action plan development
plans to ensure governments follow through on
Is there a multistakeholder forum: No
commitments. Germany joined OGP in 2016. Since, Level of public influence: Involve
Germany has implemented one action plan. This Acted contrary to OGP process: No
report evaluates the design of Germany’s second
action plan. Action plan design
Commitments relevant to OGP values: 14 (100%)
General overview of action plan Transformative commitments: 1 (7%)
Germany continues to perform strongly in most Potentially starred commitments: 1
major areas of open government, and Germans
continue to report high levels of trust in the federal
government and in the opportunities to participate
in political life. Germany’s second action plan builds on the foundations established under the first plan,
particularly around open data and civic participation in certain policy areas. The second action plan also
includes five commitments from German laender (states).
The development of Germany’s second action plan followed a two-track consultation process similar to
that used in developing the first plan. However, the second action plan saw a deeper level of
engagement with stakeholders, as well as detailed feedback on stakeholder proposals and the inclusion
of state-level initiatives. Despite the deeper level of engagement, several major civil society priorities did
not make it into the final action plan. To help reduce this gap in the next plan, Germany could consider
an additional opportunity for participants to provide feedback on the final commitments selected. It
could also consider bringing the co-creation process in the country in line with OGP’s Participation and
Co-creation Standards.
Noteworthy commitments in Germany’s second action plan include improving the transparency of
German foreign policy, including the digitization of historical documents of the Federal Foreign Office
(Commitment 2). Commitment 5 builds on the improvements in transparency of development data and
dialogue in development cooperation achieved during the first action plan, while Commitment 8 aims to
improve public understanding and participation in the law-making process. Additionally, Commitment 12
2Version for public comment: Please do not cite
aims to strengthen data sovereignty in North Rhine-Westphalia and could improve public access to
categories of privatized data that have considerable public value.
Table 2. Noteworthy commitments
Commitment Moving forward Status at the end of
description implementation
cycle
2. Civil society dialogue During implementation, the Federal Foreign Note: this will be
on foreign policy Office could actively solicit user feedback and assessed at the end of
Expand and deepen citizen respond with how this feedback was the action plan cycle.
engagement in foreign incorporated. The digitization of the political
policymaking and continue archive could be guided by clear targets. The
digitizing the Federal Foreign Office can publish user feedback on the archive
Office’s Political Archive. and fully explain which segments of files are not
made available.
5. Transparency and For successful implementation, the Federal Note: this will be
participation in Ministry of Economic Cooperation and assessed at the end of
development Development (BMZ) could ensure high up-take the action plan cycle.
cooperation of International Aid Transparency Initiative
Improve the quality and (IATI) standards by new reporting entities as
scope of data in development well as transparent tracking of comments and
cooperation and establish follow-ups in the planned feedback system.
broader dialogue on BMZ could also develop customizable
reporting in this area, as well visualizations and integration with other
as on greater data use and development-related information systems.
integration.
8. Better regulation During implementation, the Federal Note: this will be
through participation Chancellery could consider adding explanatory assessed at the end of
and testing notes to improve the comprehensibility of laws the action plan cycle.
Expand public participation in and develop user-friendly guides to the
drafting rules and make laws provisions of the law and its applications. The
and regulations easily Federal Chancellery could also develop guides
comprehensible and freely on how to participate in the early stages of
available planning new laws, namely the pre-drafting
scenarios before drafting begins.
12. Strengthening data To maximize the impact of this commitment, Note: this will be
sovereignty in North the North Rhine-Westphalia Ministry of assessed at the end of
Rhine-Westphalia Economic Affairs could ensure that the scoping the action plan cycle.
Identify and address exercise and guidance materials are fully
challenges for public relevant to and generated in cooperation with
administrations with regard municipalities in other German states. It could
to data sovereignty in North also consider expanding the current focus on
Rhine Westphalia data in public-private partnerships to data-
sharing possibilities with other private entities
whose services (such as ride or flat-sharing)
intersect with essential local regulatory
functions.
3Version for public comment: Please do not cite Recommendations IRM recommendations aim to inform the development of the next action plan and guide implementation of the current action plan. Please refer to Section V: General Recommendations for more details on each of the below recommendations. Table 3. Five KEY IRM Recommendations Add a further consultation step for the draft action plan and strengthen the institutional basis for more collaborative design and stewardship of the action plan. Expand and systematize outreach to and involvement of actors at local and state levels, as well as parliament and the parliamentary administration. Establish a thematic focus on climate change: the green transformation and open government. Revisit civil society and international suggestions on lobbying (a mandatory, effectively enforced registry) and conflict-of-interest management (e.g., better reporting on assets, incomes, and interests). Include a strong commitment to maximize the efficacy of any possible regulations in these areas. Consider expanding innovative state-level commitments on adopting open data standards and data sovereignty. ABOUT THE IRM OGP’s Independent Reporting Mechanism (IRM) assesses the development and implementation of national action plans to foster dialogue among stakeholders and improve accountability. Dr. Dieter Zinnbauer collaborated with the IRM to conduct desk research and interviews to inform the findings in this report. Dr. Zinnbauer works on emerging policy issues and innovation in the areas of governance and technology. He is a research fellow at the Copenhagen Business School, holds a PhD from the London School of Economics and served as senior manager on innovation for Transparency International.
Version for public comment: Please do not cite I. Introduction The Open Government Partnership is a global partnership that brings together government reformers and civil society leaders to create action plans that make governments more inclusive, responsive, and accountable. Action plan commitments may build on existing efforts, identify new steps to complete ongoing reforms, or initiate action in an entirely new area. OGP’s Independent Reporting Mechanism (IRM) monitors all action plans to ensure governments complete commitments. Civil society and government leaders use these evaluations to reflect on their own progress and determine if actions have impacted people’s lives. Germany joined OGP in 2016. This report covers the development and design of Germany’s second action plan for 2019−2021. The Independent Reporting Mechanism of OGP has partnered with Dr. Dieter Zinnbauer to conduct this evaluation. The IRM aims to inform ongoing dialogue around development and implementation of future commitments. For a full description of the IRM’s methodology, please visit https://www.opengovpartnership.org/about/independent-reporting-mechanism.
Version for public comment: Please do not cite II. Open Government Context in Germany Germany continues to have favorable conditions for advancing open government, including strong civic rights, an effective rule of law and sound anticorruption policies. Germany’s second action plan builds on the first plan by including more commitments on open data (at the state and local levels) and on civic participation. Areas for improvement include the user-centricity of open data regimes, the regulation and transparency of lobbying, and the deployment of anti- money laundering measures in the housing sector. Germany’s first OGP action plan (2017−2019) largely focused on laying institutional foundations for its future OGP engagement, improving transparency and open data, and expanding civic engagement. The first plan resulted in significantly greater disclosure of information in the extractive sector, foreign aid, and transportation.1 Germany’s second action plan (2019−2021) continues to improve open data but also focuses on expanding opportunities for civic participation in areas such as foreign policy, foreign aid transparency, and youth policy. The plan also includes activities for stimulating innovation and developing technology-driven solutions in public administration. Lastly, the second action plan includes five commitments from three German states (three from North Rhine-Westphalia, one from the Free State of Saxony, and one from Schleswig-Holstein). In October 2019, the government of Germany officially begun its three-year term on the OGP Steering Committee, along with the governments of Georgia and Indonesia.2 Transparency and access to information (legal framework and practice) Germany tends to have average scores in relation to comparable countries regarding transparency and openness. The World Justice Project ranked Germany 11th among 38 high-income countries in its 2019 Rule of Law Index. The Project ranked countries on the online availability of laws and data, the right to information, civic participation, and complaint mechanisms.3 The Global Right to Information Rating assesses the overall strength of the right-to-information legal framework using 61 indicators. In its 2018 update,4 Germany scored 54 out of 150 possible points and ranked 116th among 123 countries assessed.5 Areas needing improvement were the establishment of clear information rights, stronger sanctions and protections, and more expansive promotion of these mechanisms. The 2019 Sustainable Governance Indicators examine 43 EU and OECD countries. It gave Germany 8 out of 10 possible points in the second-best and largest band of countries (out of four bands) regarding government transparency.6 A comparative assessment of transparency in German states and the federal government shows high variation.7 For example, some states such as Bavaria and Lower Saxony lack a dedicated freedom-of- information law entirely, while Hamburg has a strong transparency law that mandates proactive disclosure of many information categories and scored 69 out of 100 points. The federal government itself ranked at the bottom of the middle tercile, with a score of 38.8 The assessment found the federal government was particularly weak regarding information rights and the proactive disclosure of government information.9 The most recent official evaluation of the 2005 Federal Freedom of Information Law (Informationsfreiheitsgesetz) in 2012 found that it could be strengthened by, for example, reducing applicable fees and demanding more comprehensive justifications for exemptions.10 The latter issue was also reiterated as a central recommendation in the most recent activity report by the federal freedom-of-information commissioner for 2018−2019.11 The German government’s communication about the COVID-19 pandemic and related response measures has been highly transparent, and the country has been held as an example in this regard.12 The country has commissioned a tracing application13 that adheres to strict privacy standards14 and relies in large part on an open source architecture that has been extensively scrutinized.15 However, there remains some room for improvement in the open governance of the country’s COVID-19 response. Civil society groups have jointly appealed to the Robert Koch Institute, the federal government’s main scientific body, to provide more timely, disaggregated, and machine-readable data that underpins its daily 6
Version for public comment: Please do not cite pandemic assessments. One of civil society’s main freedom-of-information portals saw a doubling of visits in the early phases of the pandemic,16 as people searched for institutions’ preparedness plans.17 Furthermore, there is at least one freedom-of-information case currently in the court system, as a state government has refused to grant public access to some COVID-19 related directives.18 Open Data In the 2018 Open Data Barometer, Germany scored 58 out of 100 points, an improvement of only two points since the first edition of the Barometer in 2013. This places Germany 10th out of 30 leading open government countries, with room for improvement, particularly in the categories of the social and political impact of data.19 The 2019 Open Data Maturity Index for the EU28+20 countries placed Germany in the “follower” category, (at rank 13, just above the overall average), and identified ongoing challenges in organizational capabilities, awareness, and incorporation of data re-users.21 These rankings demonstrate Germany’s relatively good scores on open data policies, quality, and oversight. However, there remains limited awareness inside the administration on open data issues, a need for more capacity building, and better data availability in key areas such as land ownership, water quality, and government spending.22 In addition, the persistent lack of legally enforceable individual entitlements to open data was highlighted in 2019 by two high-profile expert commissions.23 Civil society organizations (CSOs) continue to call for more comprehensive, rights-based, and proactive disclosure frameworks in the form of transparency laws at federal and state levels, a demand that is also strongly supported by the federal information commissioner.24 Germany used its first OGP action plan to strengthen the institutional framework and learning environment for open data. It expanded available open data in the transportation sector, the extractives sector, and development aid. Germany’s second OGP action plan builds on these efforts. Among others, it aims to develop a national open data strategy, encourage multi-stakeholder innovation through regional open data labs, further expand open data in development aid, and deepen open data practices in several German states. Civil Liberties and Civic Space In Germany, the fundamentals of civic participation are enshrined in Articles 5, 8, and 9 of the Basic Law of the Federal Republic of Germany (Grundgesetz).25 These articles establish the freedoms of expression, assembly, and association, respectively. Article 20(2) affirms that “[a]ll state authority is derived from the people.”26 Article 17 establishes a right to petition the government.27 At the federal level, plebiscites are limited to issues about the territorial organization of the country. Other formal mechanisms for civic participation are included in laws on administrative procedures. Such procedures require mandatory hearings for large public and private undertakings, such as large-scale infrastructure projects.28 Federal agencies and ministries also use informal, non-mandatory participation tools on a variety of policy initiatives.29 Official processes for public input on draft laws are primarily focused on engaging organized interests in the context of the mandatory Verbaendebeteiligung rather than individual citizens,30 During the last couple of years, the federal government has continued to make these processes more transparent by posting draft bills alongside all received statements by interest groups online in more user-friendly manner.31 Civil society and business demands in this area focus on the establishment of a mandatory lobbying register and a comprehensive so-called “legislative footprint:” a repository that allows citizens and organizations to track the development of any legislation from start to finish, including all amendments and their sponsors.32 Many formal mechanisms for civic engagement exist at state and local levels.33 All German states recognize public referenda and a voting electorate in their constitutions, although there are significant limitations for financial matters.34 A growing number of municipalities and local councils—such as Cologne,35 Karlsruhe,36 Leipzig,37 and Giessen38—have begun to formalize and experiment with participatory mechanisms in their decision-making processes.39 7
Version for public comment: Please do not cite Regarding civic rights and freedoms, Germany continues to rank highly, often in the top decile or quintile of countries in major assessments. In the World Justice Project’s 2019 Rule of Law Index, Germany ranked 6th among 38 high-income countries assessed for fundamental rights (including freedom of assembly and association) and 3rd for civil justice (including civic participation).40 In the Sustainable Governance Indicator Initiative, Germany scored 9 out of 10 points in the categories of civil and political liberties.41 The nongovernmental organization (NGO) Civicus includes the country in its top group of “open countries.”42 Similarly, Freedom House, in its assessment of political rights and civil liberties, classified Germany in the top cluster of countries labeled “free,” with an aggregate score of 94 of 100 points in its latest assessment for 2019/2020.43 Freedom House has raised concerns about potential censorship risks in relation to a 2017 law that expands the requirements for social media platforms to remove illegal content, which is scheduled to be further tightened in 2020 (NetzDG).44 A string of harassment, violent assaults and terrorist attacks by right wing-extremists and a persistent, incrementally growing cluster of an estimated 24,000 violence-prone right-wing extremists in the country highlight challenges to the practical exercise and protection of civic freedoms, particularly for immigrants and Germans with a migrant background.45 Accountability and anticorruption Germany’s legislative practices regarding accountability and anticorruption are generally well developed and effective.46 However, the highly decentralized federal system at times defies standardized classification of international standards.47 Transparency International’s Corruption Perceptions Index 2019 puts Germany 9th out of 180 countries, with a score of 80 of 100 possible points.48 The World Bank’s Worldwide Governance Indicators placed Germany in the 95th percentile for both “voice and accountability” and “control of corruption” in 2018. The initiative noted a slight improvement in both dimensions between 2017 and 2018.49 Other related assessments also identified room for improvement regarding whistleblower protection,50 lobbying regulation, conflict-of-interest management,51 and money laundering in the real estate sector.52 As mandated by the EU’s anti-money laundering framework, Germany updated its related legal provisions in 2019.53 However, despite CSO protest, Germany charges a fee and does not anonymize public access to beneficial ownership information, a centerpiece for anti-money laundering efforts.54 Regarding lobbying regulation, the Council of Europe’s Group of States Against Corruption (GRECO) noted in its second compliance report for 2019 that Germany has not followed through on related recommendations to strengthen the registration of lobbyists and increase transparency in the legislative process.55 A controversy in mid-2020 about the lobbying and outside business activities by a prominent parliamentarian has generated fresh cross-party momentum for a mandatory lobbying register and broader transparency in this area.56 Finally, CSOs have pointed out corruption risks related to the COVID-19 pandemic. These risks relate to expedited procurement procedures at the local level, as well as the government’s large economic support and stimulus package.57 Budget Transparency The International Budget Partnership’s 2019 Open Budget Survey gave Germany 69 out of 100 points (compared to the OECD average of 68) and found that it provides “substantial budget information.” It also scored well in budget oversight (91 out of 100 points). It received a lower score on public participation indicators: 15 of 100, compared to the OECD average of 23, an issue that is also noted by the OECD in its 2019 assessment of budgetary governance in practice.58 While Germany is below the OECD average on gender budgeting, the country does well with regard to transparency of the budgetary impact on the environment (Germany is one of only two OECD countries to offer full disclosure).59 8
Version for public comment: Please do not cite 1 Dieter Zinnbauer, Independent Reporting Mechanism (IRM): Germany Implementation Report 2017–2019 (OGP, 27 Jul. 2020), https://www.opengovpartnership.org/documents/germany-implementation-report-2017-2019/. 2 OGP, 2019 Government Steering Committee Elections (14 May 2019), https://www.opengovpartnership.org/about/who-we- are/steering-committee/2019-government-steering-committee-elections-2/. 3 World Justice Project, World Justice Project Rule of Law Index 2019 “Germany” (2019), https://worldjusticeproject.org/sites/default/files/documents/ROLI-2019-Reduced.pdf. 4 The German assessment in this version was based on data collected in 2015. 5 Global Right to Information Rating, “Country Data” (2018), https://www.rti-rating.org/country-data/. More granular comparative assessments of freedom-of-information legislation across German states and at the federal level place the federal government squarely in the middle (Open Knowledge Foundation, “Transparenzranking”[Transparency Ranking], (2017), https://transparenzranking.de/). 6 Sustainable Governance Indicators "Executive Accountability Citizens’ Participatory Competence" (2019), https://www.sgi- network.org/2019/Governance/Executive_Accountability/Citizens%E2%80%99_Participatory_Competence/Open_Government. 7 Helen Darbishire, Nicola Quarz, Arne Semsrott, and Alexander Trennheuser, Transparenz Ranking 2017 (Open Knowledge Foundation and Mehr Demokratie, 2017), https://transparenzranking.de/static/files/ifg-ranking.pdf. 8 Id. 9 Id. 10 Institut für Gesetzesfolgenabschätzung und Evaluation, Evaluation des Gesetzes zur Regelung des Zugangs zu Informationen des Bundes—Informationsfreihtsgesetz des Bundes [Evaluation of the Federal Freedom of Information Law] (2012), https://dopus.uni- speyer.de/frontdoor/deliver/index/docId/2771/file/AB_Informationsfreiheitsgesetz.pdf. 11 Der Bundesbeauftragte fuer den Datenschutz und die Informationsfreiheit, “7. Tätigkeitsbericht zur Informationsfreiheit 2018 – 2019” [7th Activity Report on Freedom of Information 2018 – 2019] (17 Jun. 2020), 7, https://www.bfdi.bund.de/SharedDocs/Publikationen/Taetigkeitsberichte/TB_IFG/7TB_18_19.html?nn=5217154. 12 Saskia Miller, “The Secret to Germany’s COVID-19 Success: Angela Merkel Is a Scientist” (The Atlantic, 20 Apr. 2020), https://www.theatlantic.com/international/archive/2020/04/angela-merkel-germany-coronavirus-pandemic/610225/. 13 Corona-Warn-App, “Corona-Warn-App Open Source Project Help us improve the Corona-Warn-App” (2020), https://www.coronawarn.app/en/. 14 For example, see comments by the prominent hacker collective, Chaos Computer Club, as quoted in Simon Hurtz, “Diese App ist ein guter Anfang” [This app is a good place to start] (Süddeutsche Zeitung, 16 Jun. 2020), https://www.sueddeutsche.de/digital/corona-app-smartphone-tracing-datenschutz-1.4937957. 15 Zeit Online, “Entwickler veröffentlichen Programmcode der Corona-Warn-App”, 31 May 2020. https://www.zeit.de/digital/2020-05/corona-app-open-source-projekt-programmcode-quellcode. 16 Arne Semsrott, “Corona und Informationsfreiheit” [Corona and Freedom of Information] (FragDenStaat, 20 Mar. 2020), https://fragdenstaat.de/blog/2020/03/20/corona-informationsfreiheit/?pk_campaign=newsletter&pk_kwd=20200329. Developers report that 7,000 responses to the beta versions of the code were received from the open source community (Die Bundesregierung, “Datenschutzhinweis” [Data Protection Notice] (accessed Jul. 2020), (https://www.bundesregierung.de/breg- de/aktuelles/pressekonferenz-zur-vorstellung-der-corona-warn-app-1761058). 17 See FragDenStaat, "Pandemie-Manahmen-Plan.pdf" [Pandemic Action Plan.pdf] (Open Knowledge Foundation Deutschland, accessed Jul. 2020), https://fragdenstaat.de/dokumente/3934/. 18 Ingo Dachwitz, "Justizministerium muss geheime Corona-Erlasse rausrücken" [Ministry of Justice has to issue secret Corona decrees] (Netzpolitik.org, 14 May 2020), https://netzpolitik.org/2020/justizministerium-muss-geheime-corona-erlasse- rausruecken/. 19 Open Data Barometer, "Country Detail, Germany" (World Wide Web Foundation, 2017), https://opendatabarometer.org/country-detail/?_year=2017&indicator=ODB&detail=DEU. 20 EU28 countries plus Iceland, Liechtenstein, Norway, and Switzerland. 21 European Data Portal, Open Data Maturity 2019: Germany (Brussels: European Union, 29 Nov. 2019). https://www.europeandataportal.eu/sites/default/files/country-factsheet_germany_2019.pdf. 22 A summary of major issues highlighted by more detailed assessments are included in the aforementioned rankings and analyses. 23 Datenethikkommission, Gutachen der Datenethikkommission [Expertise from the Data Ethics Committee] (Oct. 2019), https://www.bmi.bund.de/SharedDocs/downloads/DE/publikationen/themen/it-digitalpolitik/gutachten- datenethikkommission.pdf?__blob=publicationFile&v=5; Bundesministerium für Wirtschaft und Energie, Ein neuer Wettbewerbsrahmen für die Digitalwirtschaft [A New Competition Framework for the Digital Economy] (Sept. 2019), https://www.bmwi.de/Redaktion/DE/Publikationen/Wirtschaft/bericht-der-kommission-wettbewerbsrecht-4- 0.pdf?__blob=publicationFile&v=12. 24 See the initiative for a public referendum on a transparency law for the state of Berlin. Volksentscheid Transparenz Berlin, “9 Gründe für ein Transparenzgesetz in Berlin” [9 reasons for a transparency law in Berlin] (2020), https://volksentscheid- transparenz.de/gruende/; Der Bundesbeauftragte fuer den Datenschutz und die Informationsfreiheit. 25 The official English translation of the German Grundgesetz is available at: https://www.btg-bestellservice.de/pdf/80201000.pdf. 26 Article 20(2) states that “[a]ll state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies.” 27 Article 17 states that “[e]very person shall have the right individually or jointly with others to address written requests or complaints to competent authorities and to the legislature.” 28 Government of Germany, “§ 25 - Verwaltungsverfahrensgesetz (VwVfG)” [Administrative Procedures Act (VwVfG)], § 25] (buzer.de, 21 Jun. 2019), https://www.buzer.de/gesetz/1586/a22529.htm. 9
Version for public comment: Please do not cite 29 Examples include the development of the 2050 climate protection plan (see background text to Commitment 8 in Germany’s first action plan, available at: https://www.verwaltung- innovativ.de/SharedDocs/Publikationen/EN/nationaler_aktionsplan_en.pdf?__blob=publicationFile&v=1) and a consultation on noise issues along major railroad lines (See Dieter Zinnbauer, Independent Reporting Mechanism (IRM): Germany Implementation Report 2017–2019 (OGP, 27 Jul. 2020), 21−23, https://www.opengovpartnership.org/documents/germany-implementation-report-2017- 2019/.) 30 Nationaler Normenkontrollrat, Erst der Inhalt, dann die Paragrafen. Gesetze wirksam und praxistauglich gestalten [First the content, then the paragraphs. Make laws effective and practical] (McKinsey & Company, Oct. 2019). It should be noted that individual citizens also have a general right to petition the government. 31 Bundesregierung, “Vereinbarung zur Erhöhung der Transparenz in Gesetzgebungsverfahren” [Agreement to increase transparency in legislative procedures] (accessed Jul. 2020), https://www.bundesregierung.de/resource/blob/975226/1557560/3eb272d7adece1680649212178782fdb/2018-11-15- transparenz-gesetzgebungsverfahren-data.pdf?download=1. 32 See the demands by a high-profile business-civil society coalition (https://www.transparency.de/aktuelles/detail/article/allianz- fuer-lobbytransparenz-fordert-interessenvertretungsgesetz/) and related submissions to the second national action plan development (https://opengovpartnership.de/wp-content/uploads/2019/05/NAP2-Ergebnisse-Konsultation.pdf). 33 Christina Benighaus, Gisela Wachinger, and Ortwin Renn, eds., Bürgerbeteiligung: Konzepte und Lösungswege für die Praxis [Citizen Participation: Concepts and Solutions in Practice] (Frankfurt: Wolfgang Metzner Verlag, 2017); Frank Rehmet, “ Volksbegehrensbericht 2019” [Referendum report 2019] (Mehr Demokratie 2019), https://www.mehr- demokratie.de/volksbegehrensbericht/. 34 Dr. Christian Waldhoff, “Der Finanzvorbehalt” [The Finance Exception], in Perspektiven und Grenzen “Direkter Demokratie,” eds., Ralf Thomas Baus and Tobias Montag (Sankt Augustin: Konrad-Adenauer Stiftung, 2012), https://waldhoff.rewi.hu-berlin.de/doc/lehre2012ws/rsr/Finanzvorbehalte-KAS-neu.pdf); and Gebhard Kirchgässner, "Finanzpolitische Konsequenzen Direkter Demokratie" [Direct Democracy and Its Implications for Budgetary Policy], in Direkte Demokratie (Nomos Verlagsgesellschaft mbH & Co. KG, 2015), 149–62. 35 Stadt Koeln, “Leitlinienprozess zur Beteiligung von Bürgerinnen und Bürgern” [Guidelines Dialogue for Good Citizen Participation in Cologne], https://www.stadt-koeln.de/politik-und-verwaltung/mitwirkung/leitlinien- buergerbeteiligung/index.html.. 36 Karlsruhe, “Bürgerbeteiligung” [Citizen Participation] (7 Aug. 2019), https://www.karlsruhe.de/b4/buergerengagement/buergerbeteiligung.de. 37 City of Leipzig, “Search Results Web results Bürgerservice und Verwaltung” [Citizen Service and Administration] (accessed Jul. 2020), https://www.leipzig.de/buergerservice-und-verwaltung/buergerbeteiligung-und-einflussnahme/leipzig-weiter- denken/informieren/. 38 Netzwerk Burgerbeteiligung, “Gießen” [To Water] (19 Jun. 2018), https://www.netzwerk- buergerbeteiligung.de/kommunale-beteiligungspolitik-gestalten/kommunale-leitlinien-buergerbeteiligung/sammlung-kommunale- leitlinien/einzelansicht-leitlinien/article/giessen/. 39 Netzwerk Burgerbeteiligung, “Sammlung kommunaler Leitlinien und Handlungsempfehlungen für die Bürgerbeteiligung” [Collection of Communal Guidelines and Recommendations for Citizen Participation] (accessed Jul. 2020), https://www.netzwerk-buergerbeteiligung.de/kommunale-beteiligungspolitik-gestalten/kommunale-leitlinien- buergerbeteiligung/sammlung-kommunale-leitlinien/. 40 World Justice Project, World Justice Project Rule of Law Index 2019 “Germany.” 41 Friedbert Rub and Friedrich Heinemann, Germany Report (Sustainable Governance Indicators, 2019), https://www.sgi- network.org/docs/2019/country/SGI2019_Germany.pdf. 42 Civicus Monitor, “Germany” (9 Jul. 2020), https://monitor.civicus.org/country/germany/. 43 Freedom House, Freedom in the World 2020 "Germany: Political Rights A Electoral Process" (2020) https://freedomhouse.org/country/germany/freedom-world/2020#PR. 44 Freedom House, Freedom on the Net 2019 "Germany" (2019), https://freedomhouse.org/country/germany/freedom-net/2019. 45 Federal Ministry of the Interior, Verfassungsschutzbericht 2018: Fakten und Tendenzen [Office for the Protection of the Constitution: Facts and Trends] (24 Jan. 2019), [https://www.verfassungsschutz.de/embed/vsbericht-2018- kurzzusammenfassung.pdf. 46 For a narrative overview, see the GAN Business Anti-Corruption Portal entry for Germany: https://www.business-anti- corruption.com/country-profiles/germany/. 47 Transparency International National Integrity System Analysis 2012. 48 Transparency International, Corruption Perceptions Index (2019) https://www.transparency.org/cpi2019. 49 The World Bank, “Worldwide Governance Indicators” (2019), https://info.worldbank.org/governance/wgi/Home/Reports. 50 Whistleblower Netzwerk and Transparency International Germany, Umsetzung der EUR-Richtlinie zum Hinweisgeberschutz [Implementation of the EUR directive on whistleblower protection] (Positionspaper 2019). 51 Freedom House, Freedom in the World Report 2018 “Germany Profile” (2018) https://freedomhouse.org/country/germany/freedom-world/2018; Council of Europe, Second Compliance Report Germany Fourth Evaluation Round GrecoRC4 (2019), 1. 52 Transparency International Deutschland, Geldwäsche bei Immobilien in Deutschland [Money Laundering in Real Estate in Germany] (Berlin: Transparency International Germany, 2018); Tax Justice Network, Financial Secrecy Index 2020: Narrative Report on Germany (2020), https://www.netzwerk-steuergerechtigkeit.de/publikationen/schattenfinanzindex/. 53 Bundesanzeiger Verlag, “Gesetz zur Umsetzung der Änderungsrichtlinie zur Vierten EU-Geldwäscherichtlinie” [Law implementing the amending directive to the fourth EU money laundering directive] (12 Dec. 2019), 10
Version for public comment: Please do not cite https://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&start=//*[@attr_id=%27bgbl119s2602.pdf%27]#__bgbl __%2F%2F*%5B%40attr_id%3D%27bgbl119s2602.pdf%27%5D__1589266268573. 54 See Transparency International Deutschland, WEED, and Netzwerk Steuergerechtigkeit, “Stellungnahme von Transparency International Deutschland e.V., WEED e.V. und Netzwerk Steuergerechtigkeit zum Referentenentwurf eines Gesetzes zur Umsetzung der Änderungsrichtlinie zur Vierten EU-Geldwäscherichtlinie (Richtlinie (EU) 2018/843) und anderer Gesetze” [Opinion by Transparency International Deutschland e.V., WEED e.V. and Network Tax Justice on the draft bill for a law implementing the amending directive to the fourth EU Money Laundering Directive (Directive (EU) 2018/843) and other laws] (31 May 2019), https://www.transparency.de/fileadmin/Redaktion/Aktuelles/Stellungnahmen/2019/19-05- 31_Stellungnahme_5.EU-Geldwaesche-Richtlinie.pdf; Arne Semsrott,Transparenzregister gegen Steuerhinterziehung: Nebelkerze statt Offenheit [Transparency register against tax evasion: fog candle instead of openness] (Netzpolitik.org, 21 May, 2019), https://netzpolitik.org/2019/transparenzregister-gegen-steuerhinterziehung-nebelkerze-statt-offenheit/. 55 See Section II. See also Council of Europe, Second Compliance Report Germany Fourth Evaluation Round GrecoRC4 (2019), 1. 56 See Der Spiegel, “CDU-Generalsekretär will Lobbyregister noch in dieser Legislaturperiode” [CDU general secretary wants lobby register this legislative period] (21 Jun. 2020), https://www.spiegel.de/politik/deutschland/paul-ziemiak-cdu- generalsekretaer-will-lobby-register-nach-fall-philipp-amthor-noch-in-dieser-legislatur-a-03ccbd8d-a86e-47fd-a1a8-7f167fc4ec40. 57 International Monetary Fund, “Policy Responses to COVID-19 Policy Tracker” (accessed Jul. 2020), https://www.imf.org/en/Topics/imf-and-covid19/Policy-Responses-to-COVID-19#G; Transparency International Deutschland, “Die Corona-Krise – ein Katalysator für Korruption?” [The Corona Crisis - A Catalyst for Corruption] (Jun. 2020), [https://www.transparency.de/fileadmin/Redaktion/Publikationen/2020/Positionspapier_Korruptionspraevention_Corona_Juni_2 020.pdf. 58 International Budget Partnership, “Open Budget Survey 2019: Germany,” (2019), https://www.internationalbudget.org/open- budget-survey/country-results/2019/germany; OECD, Budgeting and Public Expenditures in OECD Countries 2019 "Budgetary Governance in Practice: Germany" https://www.oecd.org/gov/budgeting/budgeting-and-public-expenditures-2019-germany.pdf. 59 OECD, Government at a Glance 2019 “Country Fact Sheet: Germany” (2019), https://www.oecd.org/gov/gov-at-a-glance-2019- germany.pdf. 11
Version for public comment: Please do not cite III. Leadership and Multistakeholder Process The co-creation of Germany’s second action plan saw significantly greater levels of stakeholder engagement and input opportunities compared to the first plan. The government’s feedback to civil society proposals was more detailed and the government expanded the process to include state-level commitments. Civil society’s voice in the OGP process could be strengthened by allowing greater opportunity for civil society to provide feedback on the suggested commitments before the action plan is officially adopted. 3.1 Leadership This subsection describes the OGP leadership and institutional context for OGP in Germany. The main government office and national point of contact for coordinating Germany’s OGP participation is the Division Digital State (Referat 623). Division Digital State is a subunit of the Department for Political Planning, Innovation, and Digital Policy, Strategic IT Coordination at the Federal Chancellery (Bundeskanzleramt). The Chancellery is a good institutional home for the OGP point of contact, due to the importance of coordinating and liaising between many ministries and other federal government entities involved in the OGP action plan. Unlike Germany’s first action plan, the second plan includes five commitments proposed and independently coordinated by German states. This is an important development, as many open government activities in Germany take place at the state and local level. The OGP point of contact coordinated outreach to the states and incorporated their proposals into the second action plan as a self-standing addendum. The terms for including German states into the OGP process are based on a decision by the IT Planning Council, a body that coordinates information and communications technology issues with the federal government and German states.1 Several developments suggest that political support for Germany’s OGP engagement has increased since the country joined the Partnership. A video message by Chancellor Merkel on 31 August 2019 accompanied the finalization of the second action plan design phase 2 and the plan itself contains a foreword by the Chancellor. In addition, the German government successfully applied to join the OGP Secretariat Steering Committee in 2019.3 The German delegation to the 2019 OGP Global Summit in Ottawa included representatives of several federal ministries and was led at the ministerial level by the Minister of State for Digitization, Dorothee Baer.4 More visibility of Germany’s involvement in OGP is also evident in the political discourse, with the government and opposition parties invoking Germany’s commitment to OGP principles in discussions about issues of transparency and openness.5 The financial allocation for core OGP-related activities rose from EUR 285,000 in 2018 to EUR 1,085,000 in 2019. It remains at a similar level for 2020 and is, according to several interviewed sources, sufficient for core OGP coordination costs.67 The budgets of other ministries that implement OGP commitments do not have dedicated OGP budget lines, but they have budget allotments for open data and other programs that relate to action plan activities.8 3.2 Action plan co-creation process The development of Germany’s second action plan took place during more favorable political conditions than during the development of the first plan. For example, the design phase did not fall into an election period and the applicable coalition agreement for the 19th legislative period contains an explicit reaffirmation of Germany’s OGP engagement.9 12
Version for public comment: Please do not cite
More time was provided for developing the second plan, both in terms of the entire process as well as
better advance notice for individual events. Also, the level of awareness and knowledge about OGP was
generally higher among all participating stakeholders due to their experience with the first action plan.10
An interactive online platform facilitated the collection and deliberation of ideas, which made it easier to
follow and engage.11 Additionally, a new website maintained by the point of contact provided
comprehensive background information on OGP for participating stakeholders.12
The co-creation process for Germany’s second action plan involved more diverse opportunities for
deliberation compared to the first plan.13 These opportunities included:
• a pre-consultation information meeting in October 2018,
• a public kick-off meeting in March 2019 with a preliminary discussion of possible thematic
priorities for the new action plan,
• a month-long online consultation in April 2019 that allowed for a higher level of engagement
with proposals than was the case during the previous action plan,
• facilitation of civil-society driven workshops to deepen formation of thematic areas, and
• a concluding workshop in May 2019.
The synthesis and prioritization of civil society proposals occurred during a meeting focused on a clear,
time-bound outcome of a sorted list of received suggestions. This meeting involved civil society and the
OGP point of contact and was based on a set of transparent criteria.14 The government’s feedback on
civil society proposals for commitments was more detailed than that of the first plan.15 Furthermore,
new stakeholders, were involved in the second plan’s co-creation beyond the core group of open data
and open governance stakeholders, such as an NGO working on disability and inclusion issues and an
association of development NGOs.16
The second action plan includes five commitments by three German states. This is a positive first step
toward expanding the OGP process to the subnational level, where many initiatives and engagement
around open government occurs.17 The design process of these state-level commitments differed
between the states. In North Rhine-Westphalia, a number of meetings and workshops with civil society
were held to develop the commitments.18 The commitments for Saxony and Schleswig Holstein are
continuations and expansions of ongoing initiatives and are anchored in the respective coalition
agreements of the parties in power in both states.19
The overall approach taken to develop the second action plan can still be described as a two-track
consultation process, rather than an iterative co-creation exercise, and largely mirrored the approach
taken during the first.20 The point of contact for OGP coordinated outreach to civil society and
consolidated their input into the action plan. Simultaneously, the point of contact consulted in-house
with ministries and other federal bodies to identify ongoing and planned activities that fit within the
plan’s themes and merited inclusion in the action plan. This two-sided approach is not a significant
structural shortcoming per se. It remains perhaps the most feasible format for organizing such a
multistakeholder process at the federal level, given the highly-differentiated nature of the administrative
system and the logistical challenges of federalism.21
Despite stronger interaction between government and civil society, there is still room for improvement
in attracting more stakeholders from other policy areas and reflect the cross-cutting nature of open
government and mainstream open government into other policy domains.22 Involving the subnational
level in open governance is only in a nascent state. The IT Planungsrat (the main forum for coordinating
federal-state relations on technology and OGP issues) views this as an area for improvement and
describes current interactions as conducted in a mostly voluntary and ad-hoc manner.23
Adding one more feedback and deliberation step could significantly enhance this process. There was no
substantive opportunity for civil society stakeholders to provide feedback or engage in a conversation
around the commitments selected for inclusion by the government in the draft action plan. Adding such
a step could help refine commitments and incorporate more civil society input
13Version for public comment: Please do not cite
This is particularly important given widespread perception from civil society that the second plan could
have benefited from a higher level of ambition and that the increased consultation and engagement did
not yield a more tangible civil society imprint on the final commitments.24 Other suggested
improvements from civil society participants include: a longer online consultation process, earlier
notification of deadlines, a lower entry threshold by removing the registration requirements,25 holding
meetings outside Berlin, and financial support for civil society participation.26
Only a few proposals from civil society were included as commitments in the final action plan, namely
regional open government labs and open data issues.27 Some major civil society priorities such as the
establishment of a mandatory lobby register and a repository to track changes in draft legislation (its
“legislative footprint”), were not included.28 However, the government compiled an 18-page public note
with detailed reasons on why specific proposals were considered or not prioritized.29
Table 4: Level of Public Influence
The IRM has adapted the International Association for Public Participation’s (IAP2) “Spectrum of
Participation” to apply to OGP.30 This spectrum shows the potential level of public influence on the
contents of the action plan. In the spirit of OGP, most countries should aspire for “collaborate.”
During
Level of public influence development of
action plan
The government handed decision-making
Empower power to members of the public.
There was iterative dialogue AND the public
Collaborate helped set the agenda.
The government gave feedback on how public ✔
Involve31 inputs were considered.
Consult The public could give inputs.
The government provided the public with
Inform information on the action plan.
No Consultation No consultation
OGP Participation and Co-creation Standards
In 2017, OGP adopted OGP Participation and Co-Creation Standards to support participation and co-
creation by civil society at all stages of the OGP cycle. All OGP-participating countries are expected to
meet these standards. The standards aim to raise ambition and quality of participation during
development, implementation, and review of OGP action plans.
The following table provides an overview of Germany’s performance implementing the Co-Creation and
Participation Standards throughout the action plan development.
Key:
Green = Meets standard
Yellow = In progress (steps have been taken to meet this standard, but standard is not met)
Red = No evidence of action
14Version for public comment: Please do not cite Multistakeholder Forum Status 1a. Forum established: The Open Government Network (OGN) coordinates the OGP process among civil society stakeholders and serves as a Green main interlocutor between civil society and the OGP point of contact to.32 1b. Regularity: Consultations with civil society and government ministries organized by the point of contact are held at least every quarter, in Green person or remotely. 1c. Collaborative mandate development: There is substantive engagement by Yellow civil society, but the mandate of Germany’s participation in OGP is largely developed by the OGP point of contact in the Chancellery in collaboration with relevant government actors. 1d. Mandate public: Information on the remit, membership and governance Green structure for Germany’s involvement in OGP is available on the OGP webpage.33 2a. Multistakeholder: The OGN coordinates civil society’s involvement in Red the OGP process. It is run by and consists only of civil society stakeholders and does not include formal representation from government stakeholders. However, the overall co-creation process for the second action plan saw multi- stakeholder engagement between civil society and government. 2b. Parity: A substantive number of civil society actors engaged in the action Yellow plan’s development process through the OGN. 2c. Transparent selection: Steering group members of the main civil Green society collective engaging on the OGP process are selected through a fair and transparent process. 2d. High-level government representation: The co-creation of the second Green action plan included unit leads from the Chancellery, and ministers and state secretaries attended meetings when their presence was warranted. 3a. Openness: The forum accepts inputs and representation on the action Green plan process from any civil society or other stakeholders outside the forum. 3b. Remote participation: There are opportunities for remote Green participation in some OGP meetings and events. 3c. Minutes: The OGP forum proactively communicates and reports back on Green its decisions, activities and results to wider government and civil society stakeholders.34 Action Plan Development 4a. Process transparency: There is a national OGP website where information on all aspects of the OGP process is proactively published. Green 4b. Documentation in advance: When useful, the government shares pertinent information in advance. Green 15
Version for public comment: Please do not cite 4c. Awareness-raising: The government conducted outreach and awareness- raising activities with relevant stakeholders to inform them of the OGP process. Green 4d. Communication channels: The government facilitated direct communication with stakeholders to respond to action plan process questions. Green 4e. Reasoned response: The government compiled an 18-page public note with detailed reasons on why specific proposals were considered or not Green prioritized. However, a public consultation and feedback on the draft action plan was absent. 5a. Repository: The government documented, collected, and published a Green repository on the domestic OGP website35 in line with IRM guidance. 1 Open Government Deutschland, “Open Government in Germany” (12 Sept. 2019), https://www.open-government- deutschland.de/opengov-en/content/open-government-in-germany-1685492. 2 Open Government Deutschland, "Chancellor Merkel announcing the 2nd National Action Plan in the framework of Germany's participation in the OGP” (31 Aug. 2019), https://www.open-government-deutschland.de/opengov-en/content/chancellor- announces-national-action-plan-1685508. 3 Open Government Deutschland, “Open Government in Germany.” 4 Open Government Deutschland, “Delegation attended the OGP Global Summit 2019” (6 Jun. 2019), https://www.open- government-deutschland.de/opengov-en/content/delegation-attended-the-ogp-global-summit-2019-1685490. 5 OGP was mentioned more than 20 times in parliamentary communications during the current legislative period (search on http://dipbt.bundestag.de/dip21.web/searchDocuments/simple_search.do); for example, see German Parliament, “Kleine Anfrage der Abgeordneten Tabea Rößner et al.” [Small request by Tabea Roessner et al.] Drucksache 19/16638 (20 Jan. 2020), http://dip21.bundestag.de/dip21/btd/19/166/1916638.pdf. 6 Direct OGP budget allocations are not itemized as such in the 2020 budget but subsumed under two different budget titles. OGP point of contact, email to IRM researcher, Dec. 2019. 7 German Parliament, “Gesetzentwurf der Bundesregierung” [Bill of the Federal Government] Drucksache 19/3400 (10 Aug. 2018), Item 532 05-011, http://dip21.bundestag.de/dip21/btd/19/034/1903400.pdf. 8 Id. See also German Parliament, “Strategie und Umsetzung der Open Government Partnership, von Open Data, Transparenz und Bürgerbeteiligung” [Strategy and Implementation of the Open Government Partnership, Open Data, Transparency and Citizen Participation], Drucksache 19/4026 – 2708.18 (2018), https://kleineanfragen.de/bundestag/19/4026-strategie-und- umsetzung-der-open-government-partnership-von-open-data-transparenz-und-buergerbeteiligung. 9 Koalitionsvertrag zwischen CDU, CSU und SPD (2018), “Ein neuer Aufbruch für Europa Eine neue Dynamik für Deutschland Ein neuer Zusammenhalt für unser Land “[Coalition Agreement between CDU, CSU and SPD: A new departure for Europe A new dynamic for Germany A new cohesion for our country] https://www.cdu.de/system/tdf/media/dokumente/koalitionsvertrag_2018.pdf?file=1. 10 Participant observation by IRM researcher during two consultation meetings, 6 March 2019 and 15 May 2019 (see Section VI for details). 11 Open Government Deutschland, “Online-Konsultation zum 2. NAP” [Online consultation on 2nd NAP] (accessed Aug. 2020), https://ogpde.yrpri.org/community/940. 12 Open Government Deutschland, “OGP: ‘Open Response + Open recovery’" (2020), https://www.open-government- deutschland.de/. 13 Compare documentation of the design phase in Section V of the second action plan with the documentation of the design phase for the first action plan included in the IRM design report (2017−2019). For more details about the consultation process see also https://www.open-government-deutschland.de/opengov-de/mitmachen/machen-sie-mit--1591044; for a timeline of consultation events see https://www.open-government-deutschland.de/opengov-de/termine/zeitleiste-1591046, and for the repository of meeting protocols etc. see https://bscw.bund.de/pub/bscw.cgi/71118924. 14 For synthesis see https://opengovpartnership.de/wp-content/uploads/2019/05/NAP2-Ergebnisse-Konsultation.pdf, for participants’ list see https://bscw.bund.de/pub/bscw.cgi/72498481?op=preview&back_url=72254815; for the applied quality criteria see https://bscw.bund.de/pub/bscw.cgi/72254826?op=preview&back_url=72254815. 15 Compare the 18-page letter by the government with detailed discussions of the suggestions (https://www.open-government- deutschland.de/resource/blob/1591100/1659374/6df5c9d56a89546d87dde35c98c8f6c6/antwortideen-data.pdf?download=1) with the 3-page letter by the government for the first action plan (https://opengovpartnership.de/wp- content/uploads/2017/06/Antwort_Bewertungsergebnis_OGP_Ideen_ZivilG_170530.pdf). 16 See the participants’ list for the kick-off meeting for the action plan design https://www.open-government- deutschland.de/resource/blob/1591100/1591246/0823f40a5711aae640eb4e18fc525263/teilnehmerliste-data.xlsx?download=1. Only 40% of participants during the kick-off meeting described themselves as open government experts; more than 50% indicated that they are somewhat familiar with the concept but would like to learn more (Open Government Deutschland, 16
You can also read
